Hearsay At The DMV Hearing: Official Records Exception

DUI Attorney in Orange County

 

When a police officer, CHP officer of a deputy sheriff arrests someone for DUI, the officer takes the driver’s California driver’s license and gives them a temporary license. The driver, or their Lake Forest DUI Lawyer, must call the DMV schedule a DMV hearing (Administrative Per Se hearing) within ten days of the arrest. If no hearing is scheduled, the license suspension becomes automatic. If a DMV hearing is scheduled, then the driver can continue to drive until and unless their Orange County DUI Lawyer loses the DMV hearing or the driver pleads guilty to drunk driving in the Orange County court.

 

The DMV hearing can be held telephonically or in person. At the DMV hearing, there are three issues: 1) Did the cop have reasonable cause to believe the driver was driving under the influence of alcohol; 2) Was the driver lawfully arrested; and 3) Was the driver actually driving with a blood alcohol of 0.08% or more. These three issues can provide your Westminster DUI Lawyer with fertile ground to win the hearing.

 

Although there are many defenses that a Costa Mesa DUI Lawyer can raise at the DMV hearing, this blog will focus on the blood evidence. At the DMV hearing, the DMV hearing officer will have a copy of the arrest report, the client’s driving record, the DS 367 (an arrest report specially used by the DMV), and the forensic alcohol report. This last item is usually a one-page report containing the driver’s information (name, date of birth, etc.), the agency that made the DUI arrest, the time of the DUI arrest, the date and time of the blood draw, two results of the blood alcohol analysis, (each sample must be tested twice), and the date and time each analysis was conducted.

 

Typically, at a court hearing, a piece of paper with this information would not be allowed into evidence because it is “hearsay”. Hearsay is any statement that is NOT made at the hearing. So in court if the DA tried to introduce the forensic alcohol report, the driver’s Laguna Niguel DUI Lawyer would object on grounds of hearsay. The Fullerton DUI Lawyer’s objection would be sustained and the District Attorney would have to have the forensic analyst come into court and personally testify. At the DMV however, the rules of evidence are “relaxed” since it is a civil proceeding and not a criminal one. Thus, at the DMV, these forms are considered to be “public records”. Public records are exempt from the hearsay exclusionary rule as long as: 1) they are made by and within the scope of duty of a public employee; 2) they are made at or near the time of the act, condition or event (the DUI arrest in this case); and 3) the sources of information and the method and time of preparation were such as to indicate its trustworthiness.

 

So, at the DMV hearing, the only evidence of what the driver’s actual blood alcohol level was is usually this one-page forensic alcohol report. Laguna Beach DUI Attorneys have found that one way of successfully attacking this evidence is to show that the forensic report was NOT made at or near the time of the DUI arrest. In the case of Downer v. Zolin, 34 Cal.App.4^th 578, the forensic analyst didn’t test the blood until five days after the driver was arrested for DUI. In that case the driver’s Anaheim DUI Attorney objected to the report on grounds of hearsay. The DMV overruled the DUI LAWYER’s objection and the driver appealed. The court of appeal held for the driver—finding that blood tested five days after the DUI arrest was not “at or near the time of the DUI arrest” as required by the public records exception found at section 1280 of the California Evidence Code. The suspension was ordered “set aside”.

 

If you are facing a license suspension after being arrested for a DUI call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced Orange DUI Attorney. You can also visit our website at www.EJEsqiure.com. We have meeting offices throughout Orange County and our main office is located at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675

Possession of a Controlled Substance: What The DA Must Prove Part II

Criminal Defense Lawyers in Orange County

 

In my previous blog I discussed the elements of the offense of “possession of a controlled substance” that the District Attorney must prove in order to get a conviction for Health and Safety Code Section 11350. Orange County criminal defense attorneys will tell you that the elements that the DA must prove by evidence beyond a reasonable doubt are: 1) that the person being charged exercised control and dominion over the controlled substance; 2) that the person know of the controlled substance’s presence; 3) that the person charged knew that the drug possessed was an illegal drug; and 4) that there was enough of the drug at issue, (e.g., heroine, xanex, cocaine, methamphetamine, etc.), to be used as a controlled substance.

 

In my previous blog I discussed the first element—that the defendant had dominion and control, whether actual or constructive, over the controlled substance. A competent drug defense lawyer knows the second element of the charge requires that the DA prove the defendant knew of the drug’s presence. For example, if a friend leaves a package in your house, and the package contains a controlled substance, the DA must prove that you KNEW that the package contained the illegal controlled substance before you can be convicted of the offense. If someone were to hand you a bag that contained methamphetamine, the DA would have to prove that you KNEW the bag contained methamphetamine before you could be convicted of possessing it. This element can, of course, be proven by circumstantial evidence.

 

For example, if the police also found paraphernalia on your person used for smoking methamphetamine, you have a prior conviction for sales of methamphetamine, you are on felony probation for manufacturing methamphetamine, and you ran when the police officer approached you, this would be sufficient circumstantial evidence to convince a jury that you knew the bag contained methamphetamine. Orange County drug defense attorneys will tell you that there is a narrow exception that does allow you to possess otherwise illegal controlled substances. If you possess the drug. If, for example, you found a bag of cocaine in a playground, you could legally possess this cocaine if your purpose was to dispose of or destroy the cocaine or otherwise prevent other people from unlawfully possessing it. This is a recognized exception to the law prohibiting possession of illegal drugs like heroin, cocaine or methamphetamine.

 

If you are being charged with selling, transporting or giving away,  manufacturing drugs, possession with intent to sell, drug sales, or drug possession of a controlled substance, call The Law Offices of EJ Stopyro to speak to an experienced Orange County criminal defense lawyer. The consultation is free and confidential. You can also visit us at www.ejesquire.com. We have meeting offices throughout Orange County and our main office is located at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675

Petty Theft: A Prior Theft Offense Can Be Detrimental

 Orange County criminal defense lawyers  

 

Theft is defined by Section 484 of the California Penal Code. It states, in relevant part, “every person who shall feloniously steal, take, carry away, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor of service of another, is guilty of theft.” This definition of theft, long and contorted even by the standards of an Orange County criminal defense attorney, covers just about every way that most thefts occur.

 

Grand theft is, generally, theft where the value of that which is taken exceeds $950.00, where farm crops are stolen and the value exceeds $250.00, where the property is taken from the person of another, where the property taken is a farm animal, whether dead or alive, or where the property taken is a firearm or an automobile, regardless of its value. criminal defense lawyers in Orange County know that grand theft is a “wobbler”, which means it can be charged as a misdemeanor or a felony and punished by up to a year in the county jail or by up to three years in the state prison. Petty theft includes theft of goods or services with a value of $950.00 or less. Petty theft charges usually arise out of shoplifting. Although, if the DA can show an intent to steal by the person BEFORE they entered the store, the DA will also charge the defendant with burglary. Petty theft is a misdemeanor and is punishable by up to six months in the county jail and a fine of up to $1,000.00.

 

Where a person is charged with petty theft and the value of the goods or services taken is below $50.00, the person charged with petty theft may be able to get the charge reduced to an infraction. However, your criminal defense attorney in Orange County cannot get this reduction if you have ANY other previous theft convictions on your record. Moreover, this reduction is discretionary and the District Attorney is not required to reduce the charge to an infraction. That’s why it is important for your theft lawyer to convince the DA to reduce the charge based on your record, your personal factors, and the facts of your case.

 

While petty theft is generally a misdemeanor punishable by a fine and/or up to six months of jail time, there is a rather draconian exception where the defendant has a prior theft offense. Under Penal Code Section 666, a petty theft offense becomes a wobbler, punishable as a misdemeanor by up to a year in jail or punishable as a felony by up to three years in the state prison if the defendant has a qualifying prior conviction. So, what does it take for a petty theft charge to be bumped up to a felony under this section? Well, the list is pretty complicated, even for an experienced ORANGE COUNTY CRIMINAL DEFENSE LAWYER. But basically, if the defendant has any of the following prior convictions the enhanced punishment applies:

 

·        A person with three or more prior theft convictions, including; petty theft, grand theft, theft from an elder, auto theft, burglary, carjacking, robbery, or felony receiving stolen property AND who served any jail or prison time on the prior offenses; or

 

·        A registered sex offender or a person with a prior “strike” offense with a single prior conviction for a theft offense including petty theft, grand theft, elder theft, auto theft, burglary, carjacking robbery, felony receiving stolen property AND the person served some jail or prison time for the prior theft offense.

 

A “Strike” offense is a serious or violent crime as defined in Penal Code Sections 1192.7(c) and 667.5(c). This is a very long list and includes crimes such as first-degree burglary, robbery, rape, arson, mayhem, murder, carjacking, and inflicting great bodily injury on another.

 

A person in either of the above categories who is convicted of petty theft, even a simple shoplifting, can be punished by imprisonment in the state prison for up to three years.

 

If you are facing charges for petty theft, grand theft or any other theft crimes, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential telephonic consultation with an experienced Orange County theft attorney. You can also visit our website at www.ejesquire.com. We have meeting offices throughout Orange County but our main office is located at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.

DUI License Suspension: Clearing Up The Confusion

 

The minute you are arrested for DUI your driver’s license is in jeopardy. The arresting officer will take your California driver’s license from you and give you a pink piece of paper to act as a temporary driver’s license. The officer will say something to you that, most likely, will go in one ear and out the other. The stressful experience of being arrested for drunk driving is hardly conducive to understanding the technical provisions of law the officer is explaining. Of course there is plenty of fine print on the form that contains so much twisted legal jargon on it that DUI Attorneys in Orange County find it a bit confusing. So here is the summary of what will happen to your driving privileges as a result of DMV action and the court proceedings you and your Irvine DUI Lawyer are facing.

 

You now face TWO battles to save your driver’s license and TWO suspensions of your driving privileges. The first battle is with the DMV and the second takes place in court. To start, you or your Orange County DUI Attorney must call the DMV within ten days of the DUI arrests and request a DMV hearing. (Called an Administrative Per Se “APS” hearing) If you or your Newport Beach DUI attorney don’t make the call within ten days, then you have already lost the first battle and your driver’s license will be automatically suspended. This “APS” suspension will begin thirty days after you were arrested and the length of the LICENSE SUSPENSION will depend on several factors—including any prior DUI convictions and whether you refused to take a blood test or breath test after the DUI arrest. But if you or your Huntington Beach DUI Lawyer did request an APS hearing, then no APS suspension will occur unless you lose that DMV hearing. Although a DMV hearing is difficult to win—because it is a civil proceeding with a lower burden of proof, no right to a jury, “relaxed” evidentiary rules, and a DMV employee who sits as both judge and jury—DMV hearings can be won. Moreover, the DMV hearing gives your DUI Lawyer in Orange County a great opportunity to cross-examine the police officer without the District Attorney present to make objections.

 

If you do lose the DMV hearing, then the DMV will send you and your DUI Attorney in Orange County an APS suspension letter, telling you that the suspension will begin. The APS suspension typically begins a week after you and your Mission Viejo DUI Lawyer get the suspension letter from the DMV. For a first-offense DUI the APS suspension is a four-month suspension. However, you can get a restricted license after serving 30 days of the suspension. This 30 days is then followed by five months of “restricted” driving, where you can drive to and from the mandatory Alcohol program and any work related driving.

 

The second battle for your license happens in the Orange County Superior Court. If you plead guilty to a DUI, or are found guilty by a jury of a DUI, then the court reports this conviction to the DMV. The DMV in turn issues a “conviction suspension” of your driver’s license. This conviction suspension is a six month suspension. However, like the APS suspension, the conviction suspension can be reduced to a 30 day suspension followed by a period of restriction for five months. If your DUI Lawyer in Orange County can avoid a DUI conviction in court—either by getting the charges dropped or reduced to a wet reckless, then no conviction suspension will be issued. Moreover, if you have already served any of the APS suspension, you will get credit for this toward the conviction suspension.

 

So, for example, if you were arrested for a first-offense DUI with a blood-alcohol level below a 0.15% and your Aliso Viejo DUI Lawyer lost at the DMV hearing and your driver’s license was suspended for thirty days, and then you were driving on a restricted license for 60 days before you get the conviction suspension, you will get credit for the 30 days of suspension that you already served. Thus, you will not actually serve any more suspension time on the conviction suspension. You will now only have to serve five more months of restriction on your conviction suspension and there more months of restriction on your APS suspension. More good news; these two periods of restriction run concurrently. So you will only have to serve five more months of restriction before you can get your full driving privileges returned to you.

 

It is important to note here that the APS suspension and the conviction suspension run concurrently only if the APS suspension precedes the conviction suspension. In other words, if the conviction suspension is issued before the APS suspension, you wont get credit toward the APS suspension for any time served on the conviction suspension. This is why it is important for your Costa Mesa DUI Lawyer to make sure that the DMV hearing is resolved before your case is finalized in court.

If you have questions regarding the driver’s license suspension that results from a DUI, call The Law Offices of EJ Stopyro for a free and confidential consultation at (949) 559-5500. You can also visit our website at www.EJEsquire.com. We have meeting offices throughout Orange County and our main offices is located at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675

DUI Lawyers in Orange County

How Much Does A DUI Lawyer Cost?

DUI Lawyer in Orange County

If you’ve been arrested for DUI you’re now faced with the prospect of hiring an Orange County DUI Lawyer to represent you in court and at the  DMV hearing. So, you’re probably wondering, how much does a DUI Lawyer cost? And once you start looking, you’ll find that the rates charged by DUI lawyers fluctuates wildly from as little as $800.00 to $15,000.00. So why the great disparity? Well, for one thing, there may be a great difference in what you get. But also the great difference occurs because there is no regulation in the industry controlling what a DUI attorney can charge.  So it is very important to understand exactly what the DUI attorney will do for the fee he or she charges.

The expensive but reputable firms will tell you that you get what you pay for. But that isn’t always true. These firms usually charge a lot of money and provide every service that you may (or may not) need. They will represent their clients at the DMV hearing as well as in court. They will also provide retesting of the blood sample, private investigator services if needed, expert testimony from a forensic toxicologist if needed, and representation at trial. However, the vast majority of DUI cases don’t need all of these services so the client ends up paying for services they never get. Moreover, the vast majority of DUI cases never go to trial, so the client pays for an expensive trial that never happens. Other services included in the high retainer, such as expert testimony and private investigator hours are also seldom needed. This results in a tremendous windfall for the DUI law firm that manifests itself in a nice office with a big staff driving new cars but does little to help the client.

On the other hand, DUI Attorneys in Orange County who charge as little as a thousand dollars up front to handle a DUI may not give your case the attention it needs. Many low cost DUI attorneys will simply look to settle your case as early as possible without bringing suppression or discovery motions, ensuring that the breath or blood testing devices were properly calibrated and maintained, issuing subpoenas for audio and video evidence in your case, interviewing witnesses, or visiting the scene where field sobriety tests were conducted if necessary.

So, if money is no object for you, well you probably should go with an expensive firm and pay for all the services you may need, whether or not you will actually need them. But for those who don’t have unlimited funds, it is a much better option to find an Orange County DUI Attorney with solid academic credentials and extensive experience litigating DUI cases who will perform all services necessary and only charge you for those services that YOUR case needs. The only way to do this is to actually interview DUI Attorney in Orange County. This shouldn’t be a problem as most DUI attorneys in Orange County do offer a free telephonic consultation. Those that do not offer a free telephonic consultation or who insist that you come to their office should be avoided.

A good DUI lawyer should be willing to talk extensively with you over the phone about your case. The DUI Attorney should be able to formulate an initial plan, telling you up front what services your case will need, whether they will also represent you at the DMV, and what he or she will charge for those services. For example, the DUI lawyer should tell you up front whether the blood sample should be retested, whether subpoenas will need to be issued, whether witness will need to be interviewed, the possible need for a private investigator and the likelihood of litigating any suppression motion. You should not pay for a trial or for an expert witness up front because there is a good chance that your case will not to trial. However, a DUI lawyer should tell you up front what he or she will charge if your case does go to trial. But this also requires some flexibility on your part. If, for example, during the course of representation, your DUI lawyer determines that hiring a private investigator is necessary, you should not balk at the prospect of paying for it.

At The Law Offices of EJ Stopyro we happily provide a lengthy free and confidential telephonic consultation and initial plan, including costs of all services that will be or may become necessary in your case. Call us at (949) 559-5500 for your free telephonic consultation. You can also visit our website at www.EJEsquire.com for attorney credentials, case results, and information about the charges you are facing. We have meeting offices throughout Orange County for convenience to our clients. Our main office is at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675

Orange County DUI Attorneys

DUI Arrest: Child In The Car Means Jail

DUI Attorney in Orange County

California
Penal Code Section 23572 mandates jail time for any person who is convicted of
a DUI and they were driving with a child under the age of
14 years old in the vehicle. The jail time is MANDATORY and an Orange County
judge MUST impose jail time even for a first-offense DUI. Even in cases where
there is no bad driving and the driver has a relatively low blood-alcohol
concentration, if the driver is convicted of the DUI, the enhancement must be
imposed. That’s why it is so important to consult with an Orange County DUI Lawyer if you are charged with this enhancement.

To prove the
enhancement the District Attorney need only show that there was a minor in the
car at the time of driving and that the minor was under 14-years old. So in
cases where the enhancement is charged Orange County DUI lawyers will attack the underlying charge of DUI. If your DUI Lawyer in Orange County can successfully attack the underlying DUI charge and
get it dismissed or reduced to a wet reckless, then the enhancement cannot be
applied. If the driver’s blood-alcohol is low enough, then your DUI Attorney can present a “rising” defense. This is a great way to
leverage a wet reckless deal.

The length of
jail time that must be imposed when the Vehicle Code Section 23572 enhancement
is charged depends on whether the driver has any prior DUIs within the previous
ten years. For a first-offense DUI—where the driver has no prior convictions
for DUI within the previous 10 years—the judge must impose 48 hours of actual
jail time. Moreover, Orange County DUI Attorneys will tell you that the enhancement
time is added on to any punishment that is imposed for the underlying DUI
conviction. If a driver has a prior DUI conviction within 10 years, then the
court must sentence the driver to an additional 10 days in the ORANGE COUNTYJAIL on top of the jail sentence that will be handed down for the underlying
DUI conviction. Where a driver has two priors within 10 years then the court
must sentence the driver to 30 days of additional jail time. Three priors
within 10 years will result in an additional 90 days in the Orange County jail.

There is
also a separate charge of child endangerment that the Orange County District
Attorney can file for having any minor in your car if you are driving drunk.
Penal Code Section 273a. This section makes it a crime to wilfully place a
minor in a position where their health or welfare are endangered. This separate
crime can be filed as a misdemeanor or a felony and applies to any minor under
the age of 18-years old. If it is filed as a misdemeanor it carries up to six
months in the Orange County jail. A felony conviction of child endangerment
carries up to six years in prison. Although the prosecutor retains the
discretion to file as either a felony or a misdemeanor, your criminal defense lawyer can petition the judge to reduce a felony filing to a misdemeanor.

If you face
charges for DUI, DUI drugs, or child endangerment, call The Law Offices of EJ
Stopyro at (949) 559-5500 for a free and confidential consultation with an
experienced criminal defense attorney. You can also visit our website at www.EJEsquire.com. Our main office is at
32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675,
but we have office locations throughout Orange County for client meetings.

DUI Attorneys in Orange County

DUI Arrest: Will I lose My License?

DUI Lawyer in Orange County

In most
cases of a first-offense DUI arrest, the biggest hardship to the person arrested
is the loss of their driver’s license. And one of the most common questions we DUI Lawyers in Orange County hear is whether there is a way to
avoid a license suspension. Unfortunately, in most cases, there
is no way to avoid losing your license.

First of
all, you, or your DUI Attorney, must request a  DMV hearing within ten days of the arrest. If no hearing is
requested, your license is history and there is virtually nothing that can be
done. But assuming that you do request the DMV hearing (called an “APS” hearing
for “Administrative Per Se”) you still have to win it in order to keep your
license. This can be very difficult because the DMV hearing is a civil
proceeding. This means that you are not entitled to a jury of 12 of your piers
to decide if the DMV has met its burden. Moreover, the DMV’s burden is much
lower than the criminal standard of proof-beyond-a-reasonable-doubt. In a civil
case the burden is a “preponderance” of the evidence. This is a much lower
standard and far less evidence is required to reach it. And, at the DMV, the
DMV employee gets to sit as both prosecutor and judge. Doesn’t sound very fair,
does it?

Lets assume
that you and your Orange County DUI Lawyer do prevail at the DMV hearing. Well,
that’s still not the end of it. Because if you plead guilty to a DUI in court,
or are found guilty of DUI at a trial, then the court must immediately report
the conviction to the DMV. Once the DMV is notified of the conviction, the DMV
is commanded by the California Vehicle Code to issue a conviction suspension.
This is a six-month suspension for a first-offense DUI and a two-year
suspension if you have any prior convictions for drunk driving or wet reckless.

So, in a DUI
case, the only way to keep your license is to prevail at the DMV and in the
Orange County Superior Court. If you’ve been arrested for DUI, DUI drugs or DUI with injury and would like to consult with an
experienced DUI Lawyer call The Law Offices of EJ Stopyro at (949) 559-5500. Our main office is located at 32072 Camino
Capistrano, 2^nd floor, San Juan Capistrano, CA 92675. However, we
have meeting offices throughout the county. You can also visit our website at www.EJEsquire.com.

criminal
defense lawyers in Orange County